In re American Cellular Corp.
| Decision Date | 31 January 2007 |
| Docket Number | EB-05-MD-01,DA 07-228 |
| Court | Federal Communications Commission Decisions |
| Parties | In the Matter of American Cellular Corporation and Dobson Cellular Systems, Inc., Complainants, v. BellSouth Telecommunications, Inc., Defendant. |
Adopted: January 31, 2007
Kris Anne Monteith Chief, Enforcement Bureau
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we dismiss with prejudice a formal complaint[1]filed by American Cellular Corporation and Dobson Cellular Systems, Inc. (collectively "Dobson") against BellSouth Telecommunications Inc. ("BellSouth")[2] pursuant to section 208 of the Communications Act of 1934, as amended ("Act").[3] The Complaint asserts three claims against BellSouth. First, Dobson alleges that BellSouth over-billed Dobson for certain shared facilities in Georgia, Kentucky and Tennessee, in violation of section 251(c)(2)(D) of the Act and sections 51.703(b) and 51.709(b) of the Commission's rules ("Count 1").[4] Second, Dobson alleges that BellSouth over-billed for reciprocal compensation in Georgia, Kentucky, and Tennessee, in violation of sections 251(b)(5) and 251(c)(2)(D) of the Act and section 51.703(a) of the Commission's rules ("Count 2").[5]Third, Dobson alleges that BellSouth refused to lower certain reciprocal compensation rates in Georgia and Tennessee to the rates established in the Commission's ISP Order, and consequently BellSouth charged Dobson excessive reciprocal compensation rates ("Count 3").[6] For the reasons explained below we hold that each of the claims in Dobson's Complaint is time-barred under the two-year statute of limitations in section 415(b) of the Act, [7] and must be dismissed.
II. BACKGROUND
2. During the period relevant to this dispute, Dobson was a telecommunications carrier that owned or managed commercial mobile radio service networks in Georgia, Kentucky, and Tennessee.[8]BellSouth is an incumbent local exchange carrier ("incumbent LEC") providing service in Georgia, Kentucky, and Tennessee.[9] During the relevant period, Dobson and BellSouth exchanged telecommunications traffic, as defined in section 51.701(b)(2) of the Commission's rules, pursuant to interconnection agreements in Georgia, Kentucky, and Tennessee.[10]
3. The parties' interconnection agreements provided that each party would bear the costs of using shared facilities to deliver traffic.[11] The interconnection agreements also provided that each party would pay reciprocal compensation at stated rates for traffic originated by one party and terminated by the other party.[12] Accordingly, under the interconnection agreements, each party was to periodically bill the other party only for the other's use of the shared facilities, and only for traffic terminated by the billing party.[13]
4. Although the interconnection agreements required each party to pay only for its respective portion of the shared facilities and for the telecommunications traffic terminated on the other's network, BellSouth periodically billed Dobson, and Dobson ultimately paid, for the entire cost of the shared facilities and for the telecommunications traffic terminated by both parties.[14] That is, BellSouth's bills to Dobson did not include deductions for BellSouth's use of the shared facilities, or for traffic originated by BellSouth and terminated by Dobson.[15] Although the record is unclear when BellSouth sent Dobson these bills, the record reflects that on June 3, 2002, after having received, and paid in full, all of BellSouth's bills, Dobson sent BellSouth several invoices requesting refunds to account for (1) BellSouth's use of the shared facilities, and (2) telecommunications traffic originated by BellSouth and terminated by Dobson.[16]
5. Dobson's June 3, 2002 Refund Requests listed July 3, 2002 as the "due date" for payment of the refunds by BellSouth.[17] BellSouth, however, did not pay the June 3, 2002 Refund Requests on the due date. Instead, BellSouth's first payment on the June 3, 2002 Refund Requests occurred on January 7, 2003, when BellSouth sent Dobson several letters stating that BellSouth was making a partial payment on the June 3, 2002 Refund Requests and disputing the balance of the refunds allegedly due.[18] In March 2003, BellSouth made additional partial payments on the June 3, 2002 Refund Requests, but sought a repayment of some of the amounts that BellSouth had refunded to Dobson in January 2003.[19] The parties continued to exchange communications concerning payments on the June 3, 2002 Refund Requests through the Spring of 2003, but failed to reach agreement concerning amounts owed on those Requests.[20]
6. The Commission's ISP Order, which became effective on June 14, 2001, permitted an incumbent local exchange carrier to take advantage of reduced compensation rates for "ISP-bound" traffic[21] if it offered to exchange all traffic subject to section 251(b)(5) of the Act at that same lower rate.[22] BellSouth chose to take advantage of the reduced rates for ISP-bound traffic established in the ISP Order, but did not unilaterally implement those new rates in its agreements with interconnecting carriers, including Dobson.[23] Rather, BellSouth's policy was to make the new rates available via negotiated amendments to interconnection agreements, upon request.[24] Dobson made such a request in September 2001, and the parties engaged in negotiations to amend their interconnection agreements in Georgia, Tennessee, and Kentucky over the next several months.[25] During this negotiation period, BellSouth continued to bill Dobson, and Dobson continued to make reciprocal compensation payments, at the higher, pre-ISP Order rates specified in the existing interconnection agreements.[26]
7. On February 8, 2002, Dobson transferred its operations in Georgia and Tennessee to Verizon Wireless.[27] Shortly thereafter, Dobson informed BellSouth on February 15, 2002 that, in view of the transfer of the Georgia and Tennessee markets, Dobson's request for a new or amended interconnection agreement would "now be limited to Kentucky."[28] The parties eventually negotiated a new interconnection agreement for Kentucky that incorporated the ISP Order's lower rates, retroactive to the ISP Order's effective date of June 14, 2001.[29] The parties failed, however, to negotiate new or amended agreements for Georgia and Tennessee.[30] BellSouth stopped billing Dobson in Georgia and Tennessee after February 2002, [31] but never adjusted its past charges to Dobson in those states to conform to the lower reciprocal compensation rates in the ISP Order.[32]
8. On June 3, 2002, Dobson sent BellSouth cover letters, along with the June 3, 2002 Refund Requests, stating, inter alia, that Dobson was entitled to an adjustment of BellSouth's past reciprocal compensation charges based on the ISP Order.[33] Communications between the parties attempting to resolve this issue continued through the Spring of 2003.[34] The parties, however, failed to reach an agreement.[35]
9. On May 14, 2003, Dobson notified BellSouth that it was invoking the alternative dispute resolution ("ADR") provisions in the parties' interconnection agreements.[36] Under the ADR provisions, the parties agreed to "initially" refer disputed issues to certain company representatives, and if no resolution was reached within thirty days, either party was permitted to pursue other remedies.[37] The ADR process failed to produce settlement of the disputed issues within 30 days after Dobson initiated the process.[38]
10. On June 24, 2003, Dobson filed an informal complaint at the Commission pursuant to section 1.716 of the Commission's rules raising each of the three claims that it asserts in the instant formal Complaint.[39] Specifically, Dobson alleged that BellSouth: (1) failed to pay refunds owed due to BellSouth's use of shared facilities; (2) failed to pay refunds owed to Dobson for reciprocal compensation; and (3) failed to retroactively offer Dobson the ISP Order's rates in Georgia and Tennessee.[40] On August 8, 2003, BellSouth filed a response to the Informal Complaint disputing all three claims, and declining to satisfy Dobson's demands for payment of the amounts in issue.[41] On August 22, 2003, pursuant to rule 1.718, the Market Disputes Resolution Division of the Enforcement Bureau sent a letter to Dobson's counsel stating that Dobson had exhausted all remedies under the informal complaint process, and that the Division was closing the informal complaint file.[42] The Informal Complaint Closure Letter explained that, under section 1.718 of the Commission's rules, Dobson had the right to file a formal complaint against BellSouth at the Commission, and for statute of limitations purposes the filing date of the formal complaint would be deemed to "relate back" to the filing date of the Informal Complaint, provided Dobson filed the formal complaint within six months of BellSouth's response to the Informal Complaint.[43] The Informal Complaint Closure Letter further advised Dobson that, under rule 1.718, if Dobson did not file a formal complaint within this six-month period, i.e., by February 8, 2004, it would "be deemed to have abandoned the unsatisfied informal complaint."[44]
11. Dobson did not file a formal complaint at the Commission within the six-month window provided under rule 1.718. Instead, on February 4, 2004, Dobson filed a complaint in the United States District Court for the Western District of Kentucky that raised the same claims presented in Dobson's Informal Complaint.[45] On October 16, 2004, the District Court dismissed Dobson's complaint for lack of...
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